Citation Nr: 0822267 Decision Date: 07/07/08 Archive Date: 07/14/08 DOCKET NO. 00-00 217 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUE Entitlement to service connection for rectal fissures/fistulae. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The veteran had active service from November 1969 to August 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1999 rating decision of the VARO in Indianapolis, Indiana. A review of the evidence of record reveals that in February 2001, the Board remanded the case for additional development, to include providing a VA examination to ascertain the likely etiology of the veteran's current rectal fissures/fistula. Evidence was developed and by a decision dated in March 2005, the Board denied the claim. Thereafter, the veteran appealed the determination to the United States Court of Appeals for Veterans Claims (Court). In April 2007 the Court vacated the Board's March 2005 decision and remanded the case for further development. The case was then remanded by the Board in June 2007 to comply with the Court's Order. The case has been returned to the Board for appellate review. FINDING OF FACT The veteran's rectal fissure/fistulae are reasonably related to his active service. CONCLUSION OF LAW Service connection for rectal fissure/fistulae is warranted. 38 U.S.C.A. §§ 1110, 5102, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The enactment of The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, significantly changed the law during the pendency of this claim. VA has issued final regulations to implement the statutory changes. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA provisions include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, and they redefine the obligations of VA with respect to the duty to assist the veteran with his claim. In the instant case, the Board is rendering a decision in favor of the veteran and, therefore, any further discussion of the VCAA duties is not necessary at this time. The Board notes that the case has been previously remanded by the Board for development and the veteran has been accorded examinations complete with a nexus opinion as to the etiology of the veteran's rectal fissure/fistulae. The case has been in appellate status for several years and the veteran and his representative have had ample opportunity to participate in the appeals process. The Board finds that there has been essential compliance with the mandates of the VCAA with regard to both notification and assistance. Pertinent Legal Criteria Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Subsequent manifestations of a chronic disease in service, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the "chronic." Continuity of symptomatology is required only when the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The United States Court of Appeals for Veterans Claims (Court) has held that for service connection to be awarded there must be: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Coburn v. Nicholson, 19 Vet. App. 427 (2006); Disabled American Veterans v. Secretary of Veterans Affairs, 419 F. 3d 1317 (Fed. Cir. 2005); Shedden v. Principi, 381 F. 3d 1163, 1166 (Fed. Cir. 2004). If the veteran fails to demonstrate any one element, denial of service connection will result. Factual Background and Analysis The Board has thoroughly reviewed all the evidence in the claims files. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail all the evidence submitted by the veteran or in his behalf. See Gonzales v. West, 218 F. 3d 1378, 1380 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and what this evidence shows, or fails to show, on the claim. The veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board discuss its reasons for rejecting evidence favorable to the veteran). A review of the service treatment records is without reference to complaints or findings with regard to anal fissures and/or fistulae. Of record are the veteran's July 1974 air evacuation records. The narrative summary reflects that the veteran gave a history of depression for the past three months, with no known precipitating cause. Reference was made to suicide attempts. Physical examination prior to evacuation was described as essentially within normal limits. The veteran received treatment at the Naval Regional Medical Center in Great Lakes, Illinois, for several days in July 1974. His presenting diagnosis was depression. During hospitalization physical and neurological examinations were described as within normal limits. He was given a final diagnosis of adjustment reaction of adult life, improved. The post service medical records include the report of treatment at a department facility in February 1995 for what was reported as a moderate amount of skin tags. Also noted was a deep, very wide chronic-appearing posterior fissure and some mild anal stenosis. Also of record are VA treatment records dated in August 1998 revealing the veteran underwent a fistulotomy. The veteran also underwent radiology consultation that month for an evaluation of possible Crohn's disease due to his persistent loose bowel movements with recurrent anal fissure. The impression was a normal upper gastrointestinal series with small bowel follow through. The veteran was accorded a VA anus and rectum examination in February 1999. His principal complaints were fecal incontinence and a concern over recurrence of perianal fistulae. Following examination, the examiner stated there was no documentation of the rectal trauma from a digital rectal discharge examination in 1974. Additional pertinent evidence of record includes a report of a VA rectum and anus examination in June 2002. The claims file was reviewed by the examiner. The examiner stated that he could not find any medical record or any evidence of a traumatic rectal examination during the discharge physical. He stated "I cannot give an opinion whether a recent history of rectal fistulas are secondary to patient's claim of traumatic rectal exam done by a physician during separation physical or discharge physical, as there is no documentation of discharge physical or separation physical from 1974, demonstrating any rectal exam." Also of record is an August 2006 statement from a general surgeon at the VA hospital in Indianapolis, Indiana. He stated the veteran was "well known to the surgical staff and myself following several surgical procedures under my care and direction." Reference was made to removal of several inches of the large intestine in January 2004. The surgeon stated that following that the veteran required three more surgeries and eventually underwent a complete proctectomy. He stated the veteran "has had a long-term fight with perianal problems such as fissure with fistula and recurrent abscess, which is well documented." He indicated that during the September 2005 proctectomy he noted an area of chronic damaged and inflamed tissue, old post surgical scarring, and skin tags. He stated that "given the history of this patient, my surgical intervention and visualization, and the well-documented record, it is my professional opinion that this condition does at least as likely as not date back to the early to mid 1970's." Received in May 2007 were statements from three individuals. One, the veteran's brother, indicated that shortly after the veteran got out of the service, he believed the veteran had had "problems with 'hemorrhoids'". Another was from a nurse who stated that she had known the veteran since 1984. She recalled that the veteran had some sort of rectal problem and had been having difficulties since his days with the Navy. She recalled seeing rectal creams and remedies the veteran had with him. The third affidavit was from an individual who had known the veteran since February 1975. He recalled that soon after he and the veteran began working together, he noticed that the veteran had "some physical and medical problems." The veteran was accorded an examination by a VA physician in August 2007. The claims file was reviewed. Reference was made to the veteran's long term difficulties with perianal problems such as fissures with fistulas and recurrent abscesses. The veteran claimed that he had undergone a traumatic rectal examination as part of his discharge physical examination in 1974. He believed he developed perianal fistula secondary to the traumatic examination. The examiner stated that upon review of the claims file, he did not find any medical record supporting the claim of the traumatic rectal examination at that time. Current impressions were made of: History of perianal fistulas; history of perforated sigmoid diverticulum requiring colectomy followed by inability to reverse the ostomy, as the patient had weakened anal musculature on manometry." With regard to the question whether the veteran's fissures or fistulae were causally related to service or any incident involving service, the examiner stated "I cannot resolve this issue without mere speculation. This is because there is absence of any medical record of service separation examination showing that the patient had a traumatic rectal examination resulting in a rectal fissure or fistula. Once again, I cannot resolve the above-mentioned issue without mere speculation." The physician recommended VA consider referring the case to a surgeon for further evaluation. Of record is a November 2007 statement from the aforementioned physician indicating that he saw the veteran in the compensation and pension clinic that month. He reiterated to the veteran that his recommendation was that he could not resolve the issue without resorting to speculation and he recommended the veteran be referred to see a surgeon. Additional pertinent evidence includes a December 2007 communication from a private surgeon. He stated that he had recently spent "quite some time chatting" with the veteran. He reviewed the veteran's medical records relating from service in the military on through the more recent past. He indicated that at the time of discharge examination from the military in 1974, the veteran related to him undergoing a very painful rectal examination. The physician indicated that "having examined hundreds of people with chronic perianal fistulas, I feel that [the veteran] was probably suffering from a peri-anal abscess at the time of the discharge exam and that the peri-anal abscess subsequently became a fistula and thus, developed into a more chronic problem. I do however, believe that at the time of discharge from the military, [the veteran] was having active peri-anal problems which was demonstrated by the tender rectal exam that he had at the time of discharge. A physician without a lot of experience with peri-anal disease might have simply felt that [the veteran] was a young man who didn't like rectal exams. However, the degree of pain that he had is certainly consistent with the presence of a peri-anal abscess. This is supported by the fact that a few weeks after discharge, [the veteran] had drainage from the peri- anal area that is consistent with the rupture of the abscess and the formation of the fistula." Discussion The Board determines that the evidence preponderates in favor of the veteran's claim for service connection for rectal fissures. The veteran is competent to describe that he experienced rectal discomfort at the time of separation examination. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007); see Buchanon v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The veteran has credibly testified that he began to experience rectal problems from the time of service discharge. Although there is a lack of continuity of symptomatology referring to medical confirmation of the presence of rectal fissures, the veteran has submitted statements from his half-brother and two long time acquaintances to the effect that he had recurring problems with rectal fissures in the years following his discharge from active service. A VA physician was asked to give the veteran an examination and provide an opinion as to the etiology of the veteran's current rectal problems. He stated he was not able to give such an opinion without resorting to speculation. However, the record does contain an August 2006 statement from a VA surgeon who indicated that he and the surgical staff at the VA Medical Center in Indianapolis, Indiana, had performed several surgical procedures for the veteran. That individual stated that according to the history given him by the veteran as well as his surgical intervention and visualization, it was his opinion that the veteran's peri-anal problems "at least as likely as not" dated back to the mid-1970's. This is essentially the same favorable opinion as one given by a private surgeon in December 2007. That physician's opinion was based on history given him by the veteran, a history which the Board notes is not supported by the contemporaneous medical evidence of record. Nevertheless, the physician was firm and unequivocal in expressing the opinion that he found the veteran's history credible and believed that the veteran likely had a peri-anal abscess at the time of discharge examination that subsequently became a fistula and then developed into a more chronic problem. While the Board is concerned that for whatever reason there is a lack of continuity of symptomatology from a medical standpoint for years following service discharge, there are two opinions of record from surgeons who have expressed awareness of the veteran's history. The VA surgeon indicated the veteran's disability picture was well known to the surgical staff and himself following several different surgical procedures. The private surgeon indicated that he had also reviewed the veteran's medical records dating from service to the recent past. The Board sees no reason to question the comments from the physicians. Additionally, as required by law, reasonable doubt is to be resolved in the veteran's favor. Accordingly, the Board concludes that there is reasonably a causal connection between the veteran's current peri-anal problems and his active service. The claim is therefore allowed with regard to this matter. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for rectal fissures/fistula is granted. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs